Contract killers: more on publishing

Hi, peeps —

I’ve been thinking about publishing contracts over the past few weeks (ooo! Exciting!). Not because I want to sign you up for one. But rather because I’ve seen a lot of them and I’ve even drafted a few of them during my publishing days. And one of the things I’ve noticed is that a lot of times, they’re heavily weighted toward the publisher.

I bring this up here for authors to think about, but also so readers can get a sense of a little bit about a publishing contract and what kinds of things authors find in them. And some of you readers may be future authors yourselves, so hopefully this might be helpful for you. 🙂

Anyway, let me be clear. Not all publishing houses screw their authors. I’d even argue that most probably don’t, especially now that authors have so many options. But that’s relatively new, these options. The past few years have seen a revolution in self-publishing and ebooking, and these, I think will have a positive effect on traditional houses and the types of contracts they offer authors. I think it’s happening now. Smaller houses, it seems to me, might be offering better contracts to authors because anymore, an author doesn’t have to deal with a house if they don’t want to. Or they can deal with a house that’s got a better contract.

There are independent houses out there that grant an author a reasonable contract. That is, decent royalties; a reasonable time to hold the publishing rights (I consider 3 years on a book and 18 months on a short story before your rights revert back to you reasonable, with option to renew for 1-year terms); no Right of First Refusal (ROFR — see my link below for more info on that) clause (possible exception regarding a series); discussion with the author regarding the cover (after all, the author knows the book).

These kinds of contracts exist. However, some traditional publishing is caught in a boilerplate crap pile of draconian clauses in their contracts that pretty much ensures that a publisher basically owns you. J.A. Konrath has a blog on some of these clauses. I’ve seen these clauses in contracts over the years.

Konrath’s blog is scathing. And I think it needs to be, because publishing now is certainly not how it was 10 or even 5 years ago. Hell, 2 years ago. Things are changing so quickly now that it’s hard to even keep up anymore. As a result, contracts should change, as well, and actually offer something more to authors, and work more in partnership with authors for a common goal: to publish good books and make some money doing it.

I’m a hybrid author. That is, I have some work with traditional (small independent) houses and I self-publish some. This combination works for me, because I have a day job and I can’t devote the time I’d like to self-publishing. There are houses out there that do right by their authors, that have removed all that boilerplate crap that locks you in to horrible terms and long years (5-7; sometimes life and beyond), that don’t think ROFR is a good thing (my opinion? It’s not); and that provide pretty decent royalties.

The other thing that crappy contracts (that is, the kind of contract with all those boilerplate “screw you, author” clauses) can do is make for a pretty crappy relationship with the publisher as time goes on. After all, if you’re getting crappy royalties and you’re locked in to that house with an ROFR and years on your term, why are you going to want to continue to produce for that house? And if a publisher is inflexible at initial contract about these crappy clauses, that might be some foreshadowing right there for you about what kind of publisher this is and how working with that publisher is going to pan out over the terms of your contracts.

And how about if you signed a contract like that a few years back because a house might have been an only-game-in-town kind of thing? That happens with some genres. And then all this change came along and opened up all kinds of possibilities for authors, but here you are, still stuck in that contract for another few years, still stuck in a ROFR clause.

Is it possible to get out of a contract that’s clearly not ideal for you?
Especially when things are changing so quickly? Or maybe you’ve been working with a house for a couple of years and it’s clear that the house wasn’t what you thought it was and you’d like to just move on and try elsewhere. Most of the time, no. Here’re some of the reasons why.

That, too, needs to change. Personally, if I were a publisher and an author came to me who was clearly unhappy and really wanted to leave the contract, I’d let him or her go, because it makes no sense to me to force an unhappy author to work with me. That’s like forcing an ex after a bad break-up to mow your lawn regularly or something. I’d probably ask the author if we could come to some kind of agreement where I kept the author’s book/s on my list for another year and then reverted rights back to him or her. Or I’d just give the author his/her rights back. I’d much rather have an author who left happy or at least relieved because that author then will say that even when he/she wanted to leave the contract, I let him/her do it, no hard feelings. It makes good business sense to let authors go if they’re truly unhappy with your business. After all, as Victoria Strauss notes in that blog I linked above, “an unhappy author isn’t an asset.”

Having said that, if I were a publisher, a scenario like that probably wouldn’t even come to pass because I wouldn’t have included an ROFR in a contract or clauses like Konrath describes. And I wouldn’t put a 5-7 year term in my contract for each work. Maybe 10-15 years ago that might have made sense. But with all of the changes that have occurred in publishing and technology? It ends up being, like, 25 years in tech terms. Maybe more.

In conclusion? If you want to work with a traditional house, read your contracts carefully. Work with a lawyer (one with a publishing emphasis)/get legal advice. If a contract is full of boilerplate clauses and/or clings to an ROFR and/or demands long-term holding of rights and/or any number of author-nonfriendly aspects and the publisher is unwilling to compromise, you might think about taking your business elsewhere.

Unlike even a few years ago, you have all kinds of options, now, and you don’t have to settle for a contract like that.

Some links that might interest you:
The Authors Guild with negotiation tips for your contract
PublishLawyer with book contract trouble spots
Adler and Robin Books on contract pitfalls and how Print-on-Demand publishers can prove problematic (alliteration!)
Victoria Strauss with a great post that includes some links to definitions so authors can prepare themselves better for dealing with contracts

Hi, Robin–Generally, publishers freak out about that because they’re all “keep our stuff see-krit so nobody knows what we’re up to!” 🙂

I will tell you this. My best contracts — that is, the most author-friendly contracts I’m under — are no more than 2-3 pages long and deal specifically with print and ebook rights. If these houses wish to negotiate for another right — say, audio (maybe they decide to launch an audio line) — then we can sit down and negotiate that, as well. It seems that if a contract goes on longer than those 2-3 pages, I’ve learned, chances are it’s weighted with all kinds of not-so-friendly clauses that pretty much serve as cement shoes for an author.

These are the primary things I like to see in a book contract: 1) no ROFR 2) holding the rights for around 3 years 3) ebook royalties of 35-50 percent 4) decent print royalties — that can vary. I know of one independent house that offers 50 percent print and 50 percent ebook, which I think is pretty cool, but it’s not common, unfortunately. Generally, print royalties are still in the basement as publishers cling to, sadly, outdated notions regarding a print book (under 15%) and its place in a fast-changing increasingly digital world. I’m hoping this changes. 4) clear rights-reversion clause — that is, a specific timeline for when the rights come back to you and what you, the author, have to do to ensure the process. Usually, an author has to send notice by writing 60-90 days before the day the rights expire for the publisher notifying said publisher that you are expecting your rights to come back to you on such-and-such a day and that you will expect written notification of that from the publisher. Something that’s clear for both parties.

I also like it if a publisher files copyright in my name for me, but anymore, that’s just not the case and authors generally have to do it. And I like a publisher that allows me some say (if not complete say) over a cover.

And before you sign anything, try to have an attorney look it over. A good publisher will encourage authors to do that. A good publisher EXPECTS it. So if a publisher tells you otherwise or freaks out because you want an attorney to look at a contract before you sign, you might want to look for another publisher. Publishing is, after all, a business, and it’s in everybody’s best interests to make sure that everybody understands what’s expected so that the relationship starts out on the right foot.

Hope that’s helpful. Drop me a line offsite if you’d like further info.

This is such a great post Andi. We really all need to step up and help each other understand the ins and outs of the publishing business. Secrecy and pressure to prevent sharing of information has always been what keeps the little guy/gal down. Transparency will help authors understand what is reasonable, and will foster better relationships, not harm publishers. It will help everyone because happy workers (writers) are productive. My publisher doesn’t lock authors into unreasonable terms or have ROFR’s. The reasoning? She shouldn’t have to force anyone to stay. Refreshing.